County of Linn ex rel. Linn County v. Farris

Adams, Judge, delivered tbe opinion of tbe court. This suit was upon tbe official bond of tbe defendant Hoyle as treasurer of Linn County.. David Beals was sued as one of the sureties and died during tbe progress of tbe suit, and it was revived against the appellants as bis administrators. The administrators set up as a, defense in their answer that their intestate, Beals, at the time he signed the bond, expressly agreed with the principal Hoyle that lie, Hoyle, was to procure the signatures of Dart, Wright, Leavill, Maddox and Good to the bond, and that he was to retain the bond in his hands asan escrow', not to be delivered at all unless tbe other parties named also executed it as securities. That Hoyle never did procure the signature of Leavill but that Leavill’s name was signed thereto without bis knowledge or consent, and that tbe bond was afterwards delivered to Linn County without tbe knowdedge or consent of their intestate, Beals. This answer was, on tbe motion of plaintiff, stricken out, and exceptions were duly saved to this action of tbe court; and afterwards final judgment was rendered against tbe appellants for want of answer, from which they have appealed to this court. The defense set up in this answer amounts to a plea of non est factum. To constitute a valid execution of a bond, deliv [77] ery with the intention that it shall be the bond of the obligor, * is essential. This answer sets up a conditional delivery, not to the obligee, nor to any agent of the obligee, but to the principal in the bond, with the express condition that it was not to be the bond of Beals till the other parties named as sureties should duly execute it. This condition was not complied with in regard to Leavill. From this answer the name of Leavill seems to have been forged, and as it was one oí the conditions of the delivery that all of the named parties should execute it, the omission to procure the genuine signature of Leavill or his assent to its execution, rendered the bond invalid as to the intestate. The true ground is that he has never executed the bond. One essential requisite to its due execution was wanting. An absolute delivery as the bond of the intestate. There was no delivery of this bond as the bond of the intestate. When a principal, not acting as agent of a creditor, fraudulently procures the execution of a bond by sureties, the remedy of the sureties in such case is against the principal and' not the creditor who did not participate in the fraud. But this is not that case. Here there was no valid execution of the bond at all. The delivery was conditional, and it could not become the bond of the surety till this condition was performed. (State, ex rel., Moore vs. Sandusky, et al., 46 Mo., 377 ; Gasconade County, &c., vs. Sanders, et al., 49 Mo., 192 ; Briggs vs. Ewart, 51 Mo., 245 ; Cutter vs. Whittemore, 10 Mass., 442 ; Pepper vs. State, 22 Ind., 399 ; Bagot vs. State, 33 Ind., 262 ; People vs. Bostwick, 43 Barb., 9 ; same case, 32 N. Y., 445 ; Pawling vs. United States, 4 Crancli 219 ; Duncan vs. United States, 7 Peters, 435 ; United States vs. Leffler, 11 Peters, 86 ; Seely vs. People, 27 Ills., 175.) Under this view the judgment must be reversed and the cause remanded. The other judges concur.